An ancient law that prohibits criticism of a judge could be abolished over concerns it conflicts with right to free speech

“An impudent little man in horsehair” may well fit many disappointed litigants’ description of a judge, but publishing it could land you in prison for up to two years for the offence of scandalising the court. The Birmingham Daily Argus, who described a judge as such in 1900, was punished with a fine of £100 plus costs for the arcane form of contempt of court.

The offence, which affords special protection to the judiciary, may be abolished following a consultation by the Law Commission which opens on Friday. The law reform body is investigating the offence, which dates from 1765, following the attempted prosecution of former Northern Ireland secretary Peter Hain this year. The Labour MP criticised Lord Justice Girvan’s handling of a judicial review application in his autobiography, describing the judge as “off his rocker”. Although the charge was dropped, the case provoked a debate as to whether the offence of scandalising the court was in breach of article 10 of the European Convention on Human Rights, which protects free expression.

Lord Pannick proposed an amendment abolishing the offence to the crime and courts bill, which has prompted the review. Scandalising the judiciary – or murmuring judges, as it is known in Scotland – has not been successfully prosecuted in England and Wales since 1931, but is more common in former colonies that have adopted the UK’s system of common law.